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How will Brexit affect my mother-in-law?

Since the EU referendum, our Immigration Team has been advising EU nationals and their families impacted by the UK’s decision to leave the EU. The result has thrown up a whole host of issues for EU nationals in the UK, not least how it affects their rights as a family unit.

Our earlier post, British passports for EU children, looked at the position for EU children in the UK and how their parents can obtain a British passport on their behalf. In this blog post, our Director of Immigration, Jacqueline Moore, looks at another issue often raised: what does the future hold for the parents of adult EU nationals?

For the last 45 years, EU nationals have come to the UK under their free movement rights. Those rights have given all EU nationals the right to enter the UK and remain beyond an initial automatic three month period, be that for work (either employed or self-employed), as a student, or as a self-sufficient person who holds comprehensive sickness insurance.

For retired EU nationals, their right to reside in the UK under EU law is based on them being financially self-sufficient. Many thousands of retired EU nationals have lived in the UK on this basis, although technically their residence required them to also hold comprehensive sickness insurance (CSI), though many were blissfully unware of this, and this failure to hold CSI never proved to be an issue.

The position of EU retirees, who have a personal right to enter the UK, is in stark contrast to that of other, non-EU retirees. These parents of non-EU nationals (British citizens are included in this category unless they themselves have exercised their free movement rights and lived in another member state) are required to meet the very narrow and restrictive terms of the UK domestic immigration rules.

The biggest barrier in the Immigration Rules is the requirement to demonstrate the need, as a result of age, illness or disability, for long-term personal care that the individual is unable to obtain in the country they are living in, either because it is not available or it is not affordable.

The rules, the brainchild of now Prime Minister Theresa May in her tenure as Home Secretary, has resulted in the number of non-EU adult parents coming to the UK from the rest of world diminishing drastically, and now rumoured to be little more than 100. The previous test was stringent but achievable: applicants were required to demonstrate that they were over 65 years of age and that their children could support them without recourse to public funds. Unsurprisingly, as a result of this change, many non-EU nationals have chosen not to move to the UK because they would not be able to care for their aging parents.

Before Brexit, EU nationals didn’t have to worry about these rules since, provided that their parents were themselves EU nationals, they qualified to come into the UK in their own right as self-sufficient persons. For EU nationals with non-EU parents or parents-in-law, the rules for bringing non-EU family members in were based on EU law. Non-EU parents were treated as family members who could come to the UK if they could demonstrate that they were dependent on their EU children. This provision often operated as a barrier due to the Home Office’s strict application of this dependency test, but it was not an insurmountable obstacle; EU nationals often made arrangements over time to meet this Home Office test.

Brexit, and the end of free movement, looks set to completely change this. How this change will operate in practice is best explained by looking at the following example:

Jean is French and married to Elizabeth who is a British citizen. The couple currently live in Paris. Jean, an only child, is close to his parents who are retired and living a comfortable life in Provence. They have absolutely no desire to relocate to the UK.

While the couple are happy in Paris, Elizabeth misses her family, who are based in Edinburgh, and their long-term plan had been to relocate to Scotland. What should the family be doing now to protect their rights to live in Edinburgh?

If there is a Brexit deal, then Jean’s parents can come and reside in the UK at any time, providing Jean and Elizabeth move to the UK before the end of the implementation period, i.e. before 31 December 2020. However, if the UK leaves the EU with no deal, then the family will have only until 29 March 2019 for Jean to make an application under the EU Settlement Scheme. In terms of the rules for family members, Jean’s parents in a Brexit deal scenario will have a permanent right to join Jean and Elizabeth in the UK under the Settled Scheme. In a no deal scenario, Jean’s parents would have to join their son and his wife in the UK by 29 March 2022.

If there is no deal and Jean’s parents don’t act in this window of opportunity, they are very unlikely ever to qualify to come to the UK to live with Jean and his family as they won’t meet the strict criteria of the domestic immigration rules.

Further, although the UK Government proposes that EU nationals will not need a visitor visa in advance, and will be granted entry as a visitor at port of arrival, using the visit visa route cannot be taken for granted. An Immigration Officer can refuse entry as a visitor if, in their assessment, it is likely that the individual won’t leave the UK at the end of the visit. Sadly, it is very common for parents of non-EU nationals to be refused entry if an Immigration Officer is suspicious about their family ties in the UK and their long-term plans.

What should families be doing now, particularly given the increased threat of a no deal Brexit?

The most obvious advice is for EU nationals with family in the UK, and who are thinking about living in the UK in the future, to enter the UK before 29 March 2019 and apply for pre-settled status in their own right. Once they have pre-settled status, if they want to upgrade this status to live in the UK, they should ensure they are in the UK for at least six months in the five-year period that they are given settled status.

Whilst the above advice may seem quite extreme, this may be the only way to ensure that, as circumstances change, for example due to old age or ill health, and dependency on children increases as a result, EU nationals are not prevented from enjoying the company and care of their children. If this all sounds harsh and inhumane to EU nationals and their families, spare a thought for non-EU nationals and those naturalised British citizens, many of whom have had to go through the heartbreak of having elderly parents overseas who desperately need their support but can’t obtain it due to the UK’s harsh immigration rules.

If you are an EU national or family member impacted by Brexit or an employer who wishes to provide support to their EU employees, please contact Jacqueline Moore or Blair Melville in our Immigration Team for information about the further assistance we can provide.